Altin Berxhiku v. Middlesex District Attorney's Office (SPR 20250843)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2025 SPR25/0843 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Altin Berxhiku appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2025, Mr. Berxhiku requested “… information regarding a meeting [he] had with two individuals from the Massachusetts State Police … [and] a folder containing records related to [an identified individual].” Specifically, Mr. Berxhiku sought: [1] The source from which these individuals obtained [the] sealed records. [2] The legal authority under which these records were accessed or disclosed. [3] Any documentation or communication related to the release or review of [the] records in connection with this matter. The Office provided a response on March 27, 2025. Unsatisfied with the response, Mr. Berxhiku petitioned this office and this appeal, SPR25/0843, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727 5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Daniel M. DeBlander, Esq. SPR25/0843 Page 2 April 9, 2025 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s March 27th Response In its March 27, 2025 response, the Office stated, “… there are no records in our possession, custody or control that are responsive to your request.” Additionally, the Office stated: It is not clear from your request or from a review of our records what materials were contained within the specified folder alleged to have been in the State Police troopers’ possession during the referenced meeting. The statutory scheme governing the sealing of records in certain cases does not call for the destruction of state or local police reports or other records in the possession of police departments, nor is it clear that this folder contained records concerning the sealed case you reference. See G.L. c. 276, §§ 100A-100C … it is not possible to identify the contents of the folder you reference, and … any records would not have been controlled by the sealing statutes. Current Appeal In his appeal petition, Mr. Berxhiku stated: The response does not indicate that a search was conducted to determine whether any records exist concerning the release or review of [the] sealed records. The MDAO should confirm whether it possesses any documents, emails, or communications related to the disclosure of [the] records to the Massachusetts State Police … While the MDAO asserts that sealing laws do not apply to certain police records, this does not exempt state agencies from documenting the release or transfer of such records. G.L. c. 276, § 100C limits the dissemination of sealed records, and the presence of [the] records in the possession of State Police officers raises legal concerns regarding unauthorized disclosure.

Daniel M. DeBlander, Esq. SPR25/0843 Page 3 April 9, 2025 Items 1 and 2 Mr. Berxhiku is advised that the duty to comply with requests for records extends only to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Pursuant to the Public Records Law, a custodian is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Items 1 and 2 of Mr. Berxhiku’s request constitute a list of questions, I find that the Office has no duty under the Public Records Law to answer such questions. Item 3 Please be aware, the Public Records Law states that a records access officer must furnish a copy of any public record “provided that the request reasonably describes the public record sought.” See G. L. c. 66, § 10(a)(i). In a recent case, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” As such, requests that seek “all records relating to…,” “all records concerning…,” or “all records regarding…” are not sufficiently particular as to satisfy the statutory standard of a request that “reasonably described the public record sought.” See G. L. c. 66, § 10(a)(i). Consistent with the decision in Chawla, I find that the language “[a]ny documentation or communication related to …” does not satisfy the statutory standard for a request that reasonably describes the public record sought. See Chawla, at 2. Mr. Berxhiku may wish to provide clarification regarding the specific records he is seeking. Once Mr. Berxhiku has provided the needed clarification, the Office must provide a response within 10 business days. This office encourages Mr. Berxhiku and the Office to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably).

Daniel M. DeBlander, Esq. SPR25/0843 Page 4 April 9, 2025 Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Berxhiku is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku